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April 28, 2007

How will the new USSC crack work impact present (and past) cases?

In this official press release, the US Sentencing Commission explains not only that it has amended the crack guidelines to lower applicable sentence ranges, but also that a forthcoming report "will set forth current data and information that continue to support the Commission's consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere" (basics here). These developments should have a profound impact on all on-going crack cases and may lead defendants still serving terms under the old crack guidelines to seek reductions in their sentencing terms. However, because of Booker and various retroactivity rules, legal uncertainty will surely surround whether and how the USSC's new crack work will impact present and past cases. Let's start at the top:

The Supreme Court: As noted here, the Supreme Court has pending before it a crack-sentencing case, Claiborne v. US. In Claiborne, the district court concluded the old crack guideline range was too harsh, but the Eighth Circuit declared unreasonable the selected below-guideline sentence. Under the new crack guideline, Mario Claiborne's guideline range would be lowered, but the district court's selected sentence would still be below the new sentence range. Whether or not the Justices define reasonableness review in guideline-centric or 3553(a)-focused terms, the new crack guideline and the USSC's forthcoming report surely could (and likely should) impact its work in Claiborne.

The Circuit Courts: I have long thought that the USSC's "consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives" should be sufficient to render the old crack guideline presumptively unreasonable in light of the provisions of 3553(a). Nevertheless, circuits have applied their presumption of reasonableness to crack sentences; indeed, to date, no circuit has reversed a single within-guideline crack sentence as substantively unreasonable. There now must be hundreds of within-the-old-guideline crack sentences currently on appeal that, in light of the USSC's new work, can no longer be simplistically viewed as reasonable simply because they are within the old guideline range. Arguably, in light of the USSC's new work, circuit courts ought to remand for resentencing every within-the-old-guideline crack sentence currently on appeal.

The District Courts: More than 100 crack sentences are imposed each week in the federal sentencing system. Technically, the USSC's new crack guideline does not become official until November 1. Then again, technically, all the guidelines are merely advice after Booker. I see no obvious reason why the district court ought not "consider" the very latest guideline wisdom from the Sentencing Commission even though its advice is not yet "officially" the (advisory) law. (I have been told that the last significant USSC guideline sentencing reduction (involving the immigration guideline in 2001) led many district courts to just continue sentencing until the new guideline became officially effective. But that was, of course, before Booker changed the legal status of the guidelines.)

Past cases: What the new USSC crack work means for current cases is complicated enough, but what it might mean for past cases is even more intricate. The USSC can (but rarely does) make its amendments retroactive. This official press release does not address this issue, but currently incarcerated crack offenders will surely want to do so ASAP. (I would guess there are perhaps as many as 50,000 federal offenders currently serving terms under the old crack guidelines.) I trust the USSC has thought through some of these retroactivity issues, and I am hopeful that its forthcoming report will provided some needed guidance on what should happen to defendants sentenced under the old unjust guidelines.

The failing of California's new prison plan

The Legislature on Thursday passed a sweeping spending package to ease overcrowding in California prisons but did not tackle several problems that experts say are driving the long-running crisis. While lawmakers celebrated their vote to add 53,000 beds to the state corrections system and boost rehabilitation for inmates, critics beyond the Capitol worried that other ideas left out of the $7.4-billion deal might be sidelined for good.

For example, the package excluded any effort to deal with the state's discredited parole system. Also omitted was a commission to review California's Byzantine sentencing laws. A third proposal that has drawn particularly high marks from criminologists — to move 4,500 nonviolent female offenders out of prison to correctional centers near their homes — was missing from the agreement as well.

"This is a deal about practical politics and beds," said Franklin Zimring, a professor and corrections expert at UC Berkeley's Boalt Hall School of Law. "So it's going to satisfy the Sealy mattress company, and that's about it."

UPDATE: The Christian Science Monitor has this piece on California's prison deal which starts this way: "Faced with prisons so overcrowded that the federal government is threatening intervention, California has opted for a massive expansion of existing facilities."

Why the USSC's new crack work is soooooo significant

My mind is still reeling thinking about the significance and potential ripple effects of the US Sentencing Commission's new crack guidelines and its forthcoming cocaine sentencing report (basics here). This important issue has been stuck in a political stalemate for over a decade; the stalemate has now been (partially) broken at an especially interesting moment in the evolution of the federal sentencing system. Only a series of posts will allow me to detail fully why the USSC's relatively small change in the crack guideline is such a big deal, but let me get a running start here:

1. The basic numbers: As detailed here, in FY 2006 over 5,500 federal defendants were sentenced to long federal prison terms for crack offenses. Though some crack defendants received statutory minimum sentences (which the new guidelines do not change), it's likely the new guidelines could directly impact more than 4,000 federal sentencing cases every year. I doubt that any other single guideline amendment has ever had so broad an impact.

2. A special case-specific moment: The Supreme Court has pending before it a crack-sentencing case, Claiborne v. US, although the district court in that case imposed a below-guideline sentence (which the Eighth Circuit reversed as too short). Though this USSC's new crack work need not directly impact the Supreme Court's assessment of broader Booker issues, the fact that Mario Claiborne's guideline range would be lower under the new crack guidelines could surely impact some Justices' perspectives. Also there are likely thousands of other crack sentencing cases "in the pipeline" that could and should be impacted by the USSC's new crack work (more on this in a future post).

3. A special structural moment: The usual politics of crime and punishment are all mixed up these days. The Justice Department is a mess with all the heat on AG Alberto Gonzales. Many members in the new Congress, especially new leaders in the House who are knowledgeable on these topics, seem unlikely to respond to the USSC's work with tough-on-crime rhetoric. And everyone running for President in the Senate should realize that many voters understand that crack sentences, especially for non-violent first offenders, were too long. In other words, this is a special moment for the US Sentencing Commission to champion smart sentencing reforms, and it is heartening to see it start demonstrating some real leadership.

(Not-so-)shocking execution concerns

Nebraska, the only state to still rely exclusively on the electric chair for carrying out death sentences, is scheduled to execute Carey Dean Moore on May 8. But, as this AP story details, a new execution protocol is ― surprise, surprise ― prompting legal challenges:

The state's new method of electrocution ― a single, sustained jolt instead of several shorter ones ― could leave the condemned's heart beating well after the shock, backers and foes of the protocol say. The macabre image of a strapped-down inmate, possibly brain dead but with a pulsating heart, could sharpen an already tense debate as Nebraska, the only state with the electric chair as its sole means of execution, prepares to put to death its first prisoner in a decade.

No one's sure the inmate's heart would continue to beat after the current stopped, but the possibility has caused a furor among capital punishment opponents since it was broached by the doctor who almost single-handedly revised Nebraska's execution protocol. Carey Dean Moore is to die May 8 through an untested system of sending 2,450 volts through his body for 20 seconds.

Death penalty opponents are stepping up legal challenges to the execution, mainly on the grounds that the chair is cruel and unusual punishment. And the Legislature narrowly defeated a bill last month that would have repealed the death penalty.

April 27, 2007

USSC provides (yummy?) half-a-loaf crack amendment

As detailed in this official press release, the US Sentencing Commission has now completed a significant set of proposed amendments to the federal sentencing guidelines. And though there are lots of big and small stories in all the proposed amendments, the biggest news concerns a proposed amendment to the crack guideline (and a coming report). Here is the crack discussion of the USSC's press release:

[T]he Commission unanimously announced today that it will submit to Congress on or before May 15, 2007, a report on federal cocaine sentencing policy. The report will set forth current data and information that continue to support the Commission's consistently held position that the 100-to-1 crack-powder drug quantity ratio significantly undermines various congressional objectives set forth in the Sentencing Reform Act and elsewhere. The Commission also will make recommendations to Congress in the report for modifications to the statutory penalties for crack cocaine offenses. At today's meeting, the Commission expressed its firm desire that this report will facilitate prompt congressional action addressing the 100-to-1 crack-powder drug quantity ratio.

The Commission also voted today to promulgate an amendment that modifies the penalties for crack cocaine offenses. The Commission described the problems associated with the 100-to-1 drug quantity ratio as so urgent and compelling that it promulgated the guideline amendment as a measure to alleviate some of those problems. The statutory penalties for crack cocaine offenses require a five-year mandatory minimum sentence for a first-time trafficking offense involving 5 grams or more of crack cocaine, and a ten-year mandatory minimum penalty for a first-time trafficking offense involving 50 grams or more of crack cocaine. When Congress established these penalties in 1986, the Commission responded by incorporating the statutory mandatory minimum sentences into the guidelines to provide guideline sentencing ranges that are above the statutory mandatory minimum penalties. First-time offenses involving 5 grams or more of crack cocaine receive a sentencing guideline range of 63 to 78 months, and first-time offenses involving 50 grams or more of crack cocaine receive a sentencing guideline range of 121 to 151 months, before accounting for other relevant factors under the guidelines.

The Commission's amendment modifies the guideline drug quantity thresholds to provide guideline sentencing ranges that include the statutory mandatory minimum penalties for crack cocaine offenses. Accordingly, under the amendment, a first-time trafficking offense involving 5 grams of crack cocaine will receive a guideline sentencing range of 51 to 63 months, and a first-time trafficking offense involving 50 grams or more of crack cocaine will receive a guideline sentencing range of 97 to 121 months, before accounting for other relevant factors under the guidelines. Under the statutory mandatory minimum penalties, however, a five- and ten-year sentence will still be required, respectively. As a result, the Commission's amendment provides some relief to crack cocaine offenders impacted by the disparity created by federal cocaine sentencing policy.

The Commission emphasized and expressed its strong view that the amendment is only a partial solution to some of the problems associated with the 100-to-1 drug quantity ratio. Any comprehensive solution to the 100-to-1 drug quantity ratio would require appropriate legislative action by Congress.

The text of the Commission's amendments and its accompanying 2007 report to Congress, Cocaine and Federal Sentencing Policy, will be available in the coming weeks on the Commission's website, www.ussc.gov.

This is HUGE news, and pretty encouraging for those long hopeful for significant reforms to the crack guidelines. And yet, even if/when these amendments become official, there is still a significant crack-powder disparity. However, the language used in the official USSC press release has me optimistic that the USSC is really ready to rumble with Congress on these issues and that its May 15 report to Congress will be forceful.

Notably, FAMM already has this press release highlighting the mixed, but positive, realities of these major crack sentencing developments:

"While this incremental change is a far cry from the 'equalization' of crack and powder cocaine the Commission recommended in 1995, it is a long overdue first step to improving crack sentences," said Julie Stewart, president of Families Against Mandatory Minimums (FAMM).

The possible ripple effects of this fascinating USSC development on all the on-going work of all the federal sentencing players in each branch cannot be overstated. Throughout the weekend, I plan to provide branch-by-branch commentary on how the USSC's actions could and should be received.

The family values case for sentencing reform

Thanks to this post at CrimProf, I see that this article in Good Magazine highlights the strong family values argument that could (and should) be made for sentencing and prison reforms. Here are snippets:

Nearly half a million women are married to men in prison. Maintaining these relationships involves a constant struggle with an often unsupportive penal system, despite growing evidence that a healthy marriage is one of the best tools for rehabilitation. Welcome to the intersection of prisons, love and politics....

In a national climate where the promotion of marriage is prioritized and new incarceration initiatives are being introduced across the country, the intersection of prisoners and matrimony appears to be a political blind spot. The wives of inmates are still largely without resources or assistance, grappling with often exorbitant phone rates, long distances to be travelled for visits, hypervigilant visitation rules, and restricted access to information about their husbands’ well-being. Right now, according to a report by a leading scholar named Creasie Finney Hairston, “The correctional policies and practices that govern contact between prisoners and their families often impede, rather than support, the maintenance of family ties.”

Yet another (unpublished) affirmance of a below-guideline sentence

A free airport internet connection allows me to report on yet another notable unpublished circuit ruling upholding a below guideline sentence. This one comes from the Eleventh Circuit in US v. Neufeld, No. 06-12503 (11th Cir. Apr. 26, 2007) (available here), where the panel affirms a post-Booker sentence of 48 months where the guidelines range had been 135 to 168 months (and the defendant, prior to Booker, had actually been sentenced to 135 months). In support of its ruling, the panel discusses favorably the district court's considerations and range of discretionary authority:

At sentencing and in its later filed statement of reasons, the district court cited in support of the sentence imposed, the extraordinary support available to Neufeld from his family, rabbis and community, which support the district court determined would reduce substantially the possibility of recidivism; the age of Neufeld when first sentenced; Neufeld’s criminal history; the need to provide just punishment and adequate deterrence; Neufeld’s conduct while incarcerated; and, as already discussed, the disparity between the guideline sentence and the sentences imposed on Neufeld’s codefendants. The district court seemed most impressed with the extraordinary support network available to Neufeld but relied on no single section 3553(a) factor to determine the sentence imposed....

We have no doubt that a longer sentence would fall within the range of reasonable sentences from which the district court could choose in the light of the particular facts of this defendant;... but we can not say that the government met its burden to show that the ultimate sentence imposed was unreasonable.

Thanks much to the readers who keep alerting me to these important affirmances of below-guideline sentences that the circuits keep trying to sneak through by making them unpublished. (Earlier examples from the Fourth Circuit and the Fifth Circuit perhaps suggest this is a nationwide practice.)

In KC with lots happening and perhaps coming crack guideline news!?!?

I am in Kansas City for a CLE presentation this afternoon, but have access to a computer just long enough to report that I do not have enough time to report all the stuff going on today. Helpfully, How Appealing has great coverage of lots and lots of stuff that should be of interesting to sentencing (and blogging) fans, and Ohio Death Penalty Information and StandDown Texas Project have lots of new death penalty items.

But the biggest brewing news for federal sentencing fans comes from the US Sentencing Commission, which has just noticed this meeting for 7pm tonight (!). On the agenda for the USSC version of Friday Night Lights is this tantalizing item: "Possible Votes to Promulgate and/or Publish Proposed Amendments on Federal Cocaine Sentencing."

I hope to be able to report on what comes from this meeting ASAP, and I am already giddy with anticipation about what the USSC might do on the crack front (and what the post-Booker implications might be for every branch of the federal government). Also, as noted here, I have been hearing buzz about lots of other positive amendments in the works from the USSC, too. So, though I will be off-line most of today, I expect the USSC could deliver news that will ensure I will be making up for lost time tonight and over the weekend.

While I am away, anyone want to start speculating on exactly what the USSC might be doing on the crack guidelines?

Little capital respect for a SCOTUS elder

Mark Sherman has this interesting AP article spotlighting the snippy dissent penned by Chief Justice Roberts in the AEDPA death penalty rulings on Wednesday. The piece also discusses SCOTUS voting patterns and notes Justice Kennedy's hot streak: "Kennedy is a robust 31-1 in signed opinions issued since the court began its current term in October. He is 12-0 in 5-4 cases, the only justice in that narrow majority each time in cases concerning abortion, the death penalty and global warming."

I found notable that CJ Roberts' dissent showed so little respect for Justice Stevens' recounting of the Supreme Court's capital jurisprudence, particularly given that Justice Stevens was a central player in the development of this jurisprudence. Justice Stevens was a key vote developing the Court's early guided discretion jurisprudence in late 70s, before the Chief had even graduated law school. This is not to say that the Chief should have completely deferred to Justice Stevens' take on the death penalty law he helped develop, but he surely could have been a little nicer when expressing his disagreement.

April 26, 2007

First federal sentence for sex offender failing to register

Corey Yung of the great blog Sex Crimes altered me to the fact that, today in Florida, Wilfred Madera became the first sex offender to be sentenced in federal court for failure to register under the Adam Walsh Act. The news account of the sentencing is here, and Yung's post about it is here. As this snippet from the news accoutn highlights, this case is likely to continue to make headlines:

With no precedent to rely on, an Orlando federal judge on Wednesday declined to send a New York sex offender to prison under a tough new law that punishes those who fail to register when they move across state lines. Following through on comments he made at Wilfredo Madera's plea hearing three months ago, Senior U.S. District Judge G. Kendall Sharp sentenced him to four years of probation and fined him $500.

At a Jan. 11 hearing before Madera pleaded guilty as part of a deal with prosecutors, Sharp said he was inclined to dismiss the case or give Madera no prison time. Sharp, at the time, criticized the government's case and told Madera he would throw out the case if the felon registered the next day. But an exasperated prosecutor reminded Sharp that he had "no legal standing" to do that and the judge reversed himself, acknowledging his error. He then called the law "constitutional" as written and denied a defense request to dismiss the case.

Madera, who was arrested in October as part of a nationwide crackdown on sex offenders by the U.S. Marshals Service, was the first person in the nation to be convicted under the Adam Walsh Child Protection Act. On Wednesday, he became the first to be sentenced under that law.

Assistant U.S. Attorney Cynthia Hawkins immediately protested Sharp's sentence and said her office will likely take the case to the 11th Circuit Court of Appeals in Atlanta. "The government will object to the sentence imposed as being unreasonable and not taking into account the seriousness of the offense and specifically the defendant's past criminal history," Hawkins told Sharp. Hawkins said a pre-sentence report prepared by the federal probation office showed Madera could have received 24 to 30 months in prison.

Should the ALI oppose the death penalty?

Professors Roger Clark and Ellen Podgor have submitted a motion for consideration at the upcoming American Law Institute Meeting, which calls for the Institute to take a position that it is opposed to the death penalty. This motion and statement of support can be accessed at this link, and here is the statement's first paragraph:

The Discussion draft on sentencing circulated for discussion at the 2006 meeting comments that "The sentencing Articles of the Model Penal Code drafted in the 1950s and early 1960s, have not been influential in the bulk of sentencing-code revisions undertaken since the mid-1970s." Regrettably, this is not true of the capital punishment provisions in the Code, included against the better judgment of the Reporters and the Advisory Committee. They have become, in a memorable phrase from the 1980 Commentaries on the Code, "a paradigm of constitutional permissibility," a lifeline for the retention of capital punishment against constitutional attack. We believe that the time has come to disavow them. A Model Code of Sentencing for the twenty-first century should specifically exclude the death penalty.

New article on "Plea Bargaining and Procedural Justice"

Recognizing the increasingly dominant role of plea bargaining in the American criminal justice system, legal scholars have devoted considerable attention in recent years to problems of accuracy and proportionality in cases resolved by guilty plea. However, an overriding focus on the outcomes of plea bargaining misses the important contributions that process makes to the acceptance of outcomes and the perceived legitimacy of the criminal justice system. Drawing on the extensive social psychology research on procedural justice, this Article proposes five process norms that prosecutors ought to observe when making or responding to plea offers. Paying greater attention to procedural justice in this setting may not only bring some much-needed transparency to a critical aspect of the criminal justice system, but also enhance defendants' levels of voluntary compliance with legal rules and authorities, thus advancing the system's core crime-control objectives. Moreover, while it is not cost-free, procedural justice can be implemented in meaningful ways without undermining the basic goal of efficient case processing that is often invoked as the chief justification for plea bargaining.

Set your DVRs for "The Trials of Darryl Hunt"

A favorite reader reminded me than tonight at 8pm is the HBO premiere of the "The Trials of Darryl Hunt," an award winning documentary about a wrongful conviction in North Carolina. Here is a snippet from HBO's synopsis of the movie:

In 1984, Deborah Sykes, a young white newspaper reporter, was assaulted, raped, sodomized and stabbed to death just blocks from where she worked in Winston-Salem, North Carolina. Though no physical evidence implicated him, Darryl Hunt, a 19-year-old black man, was ultimately convicted of the crime and sentenced to life in prison.

Ten years later, DNA testing proved that Hunt did not rape Sykes, and cast serious doubts on his involvement in her murder, but he spent another decade behind bars for a crime he did not commit. The eye-opening HBO documentary THE TRIALS OF DARRYL HUNT tells his riveting story — and the story of those who fought to clear his name.

More than a decade in the making, Ricki Stern and Annie Sundberg's THE TRIALS OF DARRYL HUNT examines a community and criminal justice system subject to racial bias and tainted by fear. Hunt was charged with Deborah Sykes' murder largely on the strength of an eyewitness identification by a former Ku Klux Klan member, and convicted by a jury of 11 whites and one black. It wasn't until 2004, through the help of an investigative series by Winston-Salem journalist Phoebe Zerwick, that he was finally cleared.

Over that 20-year span, his defense attorneys and public supporters never stopped fighting for him. In February 2007, the city of Winston-Salem compensated Hunt $1.65 million for his wrongful conviction and incarceration, and he also received $358,545 in compensation from the state of North Carolina.

Told from the point of view of the principal subjects — Mark Rabil, the unyielding defense attorney, and Hunt, the wrongfully convicted man — the film challenges the assumption that all Americans have access to unbiased justice. Hunt's real-life courtroom drama reflects systemic issues of broad national concern: the liabilities of cross-racial eyewitness identification, prosecutorial misconduct, inexperienced defense attorneys assigned to capital cases, racial bias in death penalty cases, and errors in police procedure....

As Hunt's story unfolds, it becomes a textbook example of how the presumption of innocence can be subverted when a city's need to solve a gruesome crime, fed by sensational media coverage, leads to a rush to judgment that validates a flimsy case. In addition to clearing their own client, the defense team is ultimately instrumental in identifying the real killer, who is now behind bars.

Thoughful discussion of appeal waivers by Third Circuit

As discussed here, Nancy J. King and Michael O'Neill have documented that appeal waivers in federal plea agreements tend to "undercut efforts to advance consistency in federal sentencing." And I have argued in posts here and here, that appeal waivers are perhaps invalid on public policy grounds because they violate of the appellate review provisions of the Sentencing Reform Act. Nevertheless, even after Blakely and Booker, it seems that appeal waivers remain a central part of federal sentencing practice.

Today the Third Circuit has a thoughtful decision in US v. Gwinnett, No. 06-1766 (3d Cir. Apr. 26, 2007) (available here), discussing the impact of appeal waivers on its jurisdiction to hear a sentencing appeal. The Gwinnett panel concludes that an appeal waiver does not eliminate its jurisdiction to hear an appeal, though it does it does conclude that it "will not exercise that jurisdiction to review the merits of [a defendant's] appeal if we conclude that she knowingly and voluntarily waived her right to appeal unless the result would work a miscarriage of justice."

An interesting down under take on jury involvement in sentencing

Here is a fascinating story about a fascinating proposal to involve juries in sentencing decision-making being discussed in Australia:

A proposal by the NSW Chief Justice, Jim Spigelman, to involve juries in sentencing has been rejected by his fellow judges, who say it would be unworkable and erode confidence in the legal system.

The plan, which involves holding secret discussions between judges and juries on possible sentences, was raised by Justice Spigelman as a way to improve decisions and prevent outbreaks of public hysteria about supposedly lenient sentences. But it has met with virtually unanimous opposition from across the legal profession, including judges, the Director of Public Prosecutions, the NSW Bar Association, the NSW Law Society and the Public Defenders Office....

The Chief Judge of the District Court, Reg Blanch, said there were "very significant practical problems" with trying to involve jurors in sentencing. "The process would be extremely difficult to administer, and it simply is not a practical option," he said. "There [would be] an expected wide difference of views between jurors about questions relating to sentence." Judge Blanch said juries were not interested in sentencing, and many would not return to the court for the proceedings, which frequently require psychiatric reports and are conducted six to eight weeks after the trial.

Another District Court judge, Michael Finnane, said the plan to hold secret discussions was repugnant and would reduce public confidence in the justice system. "Our system of justice is based upon its being public, and the parties all know what the judge tells the jury," he said. "The hardest task which I carry out as a judge is to sentence another human being … We place enough stress on jurors as it is by asking them to decide whether or not an accused person is guilty of a crime … To impose the stress of sentencing on an untrained person … would seem to me to be imposing a very heavy burden."

Some of these negative reactions seem especially interesting in the wake of yesterday's US Supreme Court decisions that were all about whether Texas jurors, making "difficult to administer" life-or-death capital sentencing decisions, were given proper instructions to ensure they shouldered the "very heavy burden" of judging whether a murderer should live or die for his crime.

California compromise to cope with prison problems

This AP report provides lots of background and information about a deal worked out by California legislators to deal with the state's prison overcrowding problems. Here are snippets:

Racing a court-imposed deadline, California's top legislative leaders on Wednesday said they had reached a wide-ranging, $6.1 billion deal to ease severe overcrowding in the nation's largest state prison system. The agreement adds 53,000 beds, requires improvements to rehabilitation programs and allows Gov. Arnold Schwarzenegger to continue his strategy of transferring thousands of inmates out of state.

"The Legislature does not want a court takeover of the system ... but we will not blindly give a blank check and throw good money after bad," Assembly Speaker Fabian Nunez and Senate President Pro Tem Don Perata said in a letter to the governor outlining the bipartisan deal. "A quick fix without fundamental changes and effective reform is simply running in place."...

The deal was criticized by the union representing state prison guards. Mike Jimenez, president of the California Correctional Peace Officers Association, said the agreement only creates a larger prison system with the same underlying problems. "At some point, it's going to break," he said....

Absent from the agreement is any mention of sentencing reform, although bills that would create a commission to review California's sentencing guidelines are moving independently through the Legislature.

Forthcoming PBS program "When Kids Get Life"

A reader sent me this link to news of a forthcoming PBS Frontline special entitled "When Kids Get Life." Here is a description of the program:

The U.S. is one of the very few countries in the world that allows children under eighteen to be prosecuted as adults and sentenced to life without parole. In Colorado, between 1992 and 2005, 45 juveniles between fifteen and eighteen were sentenced to prison without the hope of ever being released. Last spring, the state's legislature eased its tough laws targeting juvenile offenders. The state passed a bill that made parole possible after 40 years in prison, but the measure did not apply retroactively to the 45 former juveniles now in Colorado's prison system. Producer Ofra Bikel visits five young men in Colorado sentenced to life without parole to examine their crimes and punishment, the laws that sanctioned their convictions, and the prospect of never being free again.

Notable circuit court reasonableness rulings I have seen today include the Third Circuit's work in US v. Batista, No. 05-2949 (3d Cir. Apr. 25, 2007) (available here), affirming a within-guideline sentence, and the Fourth Circuit's work in US v. McClung, No. 05-2949 (4th Cir. Apr. 25, 2007) (available here) affirming an above-guideline sentence. But the most significant of the bunch is likely the Eighth Circuit's work in US v. Feemster, No. 06-2059 (8th Cir. Apr. 25, 2007) (available here).

Feemster is another Eighth Circuit decision reversing a below-guideline sentence, though along the way the court discusses a number of interesting issues in a thoughtful manner. I found especially interesting an extended discussion of Roper and the treatment of juvenile convictions less seriously than adult convictions. Here is how that discussion concludes:

While a modest downward variance may be appropriate, because a conviction resulting from conduct while not yet eighteen is not the same as a conviction resulting from adult conduct, the extent of the variance here (eleven levels or 67%) exceeds the range of reasonable variances based on the distinction between prior convictions while a juvenile and an adult.

Back with lots to read

I'm back from an terrific experience talking to a terrifically engaged and thoughtful Sixth Circuit panel, and I see I have lots to read. In addition to 110+ pages of Justice bloviating about some Texas death penalty cases, I noticed that at least three circuits issued interesting looking sentencing opinions today. As time permits late tonight, I hope soon to comment on all the sentencing news of this wacky Wednesday.